October 28, 2006

The Supreme Court agreed Friday to decide whether police officers can be sued for intentionally ramming a fleeing car during a high-speed chase, causing the death or injury of the driver....

[A police officer] rammed the rear of the speeding vehicle, sending it out of control and over an embankment. The driver, 19-year-old Victor Harris, survived but was rendered a quadriplegic.

He sued, and both a federal judge and the U.S. appeals court in Atlanta agreed that an officer who used "deadly force" by ramming his car into another vehicle could be held liable for the damage he caused. ...

When trying to stop a fleeing car, police officers try to drive alongside and then nudge the rear to the right so that the car spins out. This is known as PIT, for Pursuit Intervention Technique.

35 comments:

I'm not a lawyer, so I don't mind if my opinions aren't legal, but I'd rule for the cops. This case doesn't seem to meet the threshold of the "felony murder" laws or constitute "depraved indifference" since the victim was the criminal, but the underlying concepts are still the same.

If you drive a weapon at 100 miles/hr running red lights, it is a foreseeable result of that activity that somebody is gonna get hurt.

While I would understand if police call off a chase, I also don'r second guess them if they try to stop the guy without killing him. The fact that it turned out badly? stuff happens in the real world.

The police weren't charged with a crime. It's an action for damages. Should they be liable? State law bars any claim, but the issue is whether they can be sued for this as a violation of constitutional rights, specifically the Fourth Amendment. Is it an unreasonable seizure?

The maneuver has saved many lives by stopping high speed chases before the criminal crashes into someone innocent.

Deadly force is authorized if an officer believes there is a threat of death or serious bodily harm to either the officer or others (innocent bystanders). If the officer believes that a criminal driving a car presents this type of threat then the officer would be authorized to use deadly force. Maybe the fleeing subject is not a threat to the officer, but I think it certainly can be argued that he is a threat to others for a variety of reasons - his speeding down crowded roads just the most obvious one.

As to whether this maneuver is a use of deadly force - well, I don't think it is.

"As to whether this maneuver is a use of deadly force - well, I don't think it is."

"Deadly force" is defined in criminal-law terms as "anything capable of causing serious bodily injury or death." The results in this case clearly show that deadly force was used.

But persons are privileged to use deadly force to prevent the use of deadly force against them or third parties. The fleeing driver's speeding car was equally clearly an instrument of deadly force capable of causing serious injury or death to whoever happened to be in its way.

As Ann points out, no criminal charges could be made against these officers. The driver's claim is for civil damages for an alleged 4th Amendment violation. But what jury is going to find that the cops' efforts to stop the driver were unreasonable? If they'd let him speed away, and watched him crash into a carload of children, they'd rightly be sued for negligence.

I'm with everybody here so far, but since the link demands some sort of registration and the appeals court was in Atlanta, I'm curious if there were any mitigating circumstances. Specifically, why was the driver being chased, and was he being chased by a marked or unmarked vehicle?

I look at this from the perspective that the police were using what they thought was minimum force necessary to prevent potentially greater harm. In some places, the police would have put up a road block and laid out strips of rubber with nails in them to cause the fleeing car to run over the nails and come to a halt. Could the car hit the nails and flip over? sure. But the intent is not to kill the driver, just the opposite. stuff happens, but the fault is with the driver.

In the Georgia case, lawyers for the injured driver argued that ramming his car amounted to an "unreasonable seizure," a violation of the 4th Amendment. The courts agreed, clearing the way for the suit to go before a jury.

so any time harm comes to somebody, it's unconstitutional? The victim had a "expectation of privacy" that was violated by the police when they pursued him?

Are these police being sued personally to get around sovereign immunity? the article seems to imply that it's against the cop directly, not his department.

A suit in tort can't be brought under the 4th amendment. The 4th amendment applies to government action in criminal cases. The suit would have to be a Federal civil rights claim under 42 USC sec. 1983. And yes, cities and counties have soverign immunity. Just ask the Houston homeowners whose houses were flooded by a broken water main, and whose homeowners policies refused to pay (rightly, unfortunately) because the damage was caused by rising water.

Ann Althouse said..."[T]he issue is whether they can be sued for this as a violation of constitutional rights, specifically the Fourth Amendment. Is it an unreasonable seizure?"

No, it isn't an unreasonable seizure. The plaintiff was resisting arrest, fleeing at high speed, and presented an imminent danger to the general public.

Surely this would, in any event, be governed by Illinois v. Wardlow? In that case, the court said that if, "an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot," id., citing Terry v. Ohio, and if "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion," id., citing U.S. v. Brignoni-Ponce, then surely "[h]eadlong flight--wherever it occurs--is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Therefore, in Wardlow as in this case, "[i]n reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists ... [T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior."

Surely, to the extent that the primary difference between this case and Wardlow - that in this case, the chase involved flight in a vehicle rather than on foot - cuts either way, it cuts against the plaintiff, insofar as a suspect fleeing on foot is far less likely to pose a danger to the general public than is a three ton barely-controlled automobile moving at 100 miles an hour.

I would hold that Harris' case is controlled by Wardlow, and that even if it wasn't, a common sense application of contributory negligence would demand that Harris lose his case.

Drill: As I wrote earlier: "State law bars any claim, but the issue is whether they can be sued for this as a violation of constitutional rights, specifically the Fourth Amendment. Is it an unreasonable seizure?"

Only when acting as an arm of the state. "[T]he immunity of States from suit 'is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments' ... [But] only States and arms of the State possess immunity from suits authorized by federal law." Northern Ins. Co. of N.Y. v. Chatham County, 126 S.Ct. 477 (2005) (quoting Alden v. Maine, 527 U.S. 706, 713 (1999). In point of fact, the Supreme Court "has repeatedly refused to extend sovereign immunity to counties. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 401 (1979); id., at 401, n.19 (gathering cases); Workman v. New York City, 179 U.S. 552, 565 (1900); Lincoln County v. Luning, 133 U. S. 529, 530 (1890). See also Jinks v. Richland County, 538 U.S. 456, 466 (2003) ('[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from suit'). This is true even when, as respondent alleges here, 'such entities exercise a “slice of state power.”' Lake Country Estates, supra, at 401."

What authority do you bring forth for your proposition to the contrary, Richard?

Richard Fagin: The question about sovereign immunity referred to federal constitutional law, I believe. There is no sovereign immunity for cities and counties. You must be thinking of some state law matter.

I still don't buy into the theory that this maneuver is a use of deadly force. If done properly and at the suggested speeds, it should not flip the car over or cause it to do anything but spin out of control slightly so it has to stop.

Pepper spray might somehow, someway kill someone but it not deadly force. Neither is a baton but if used incorrectly it can certainly kill. So the fact that this might end up badly is not enough in my mind. Of course I am a cop so you see where my mind is on it.

I'm not an attorney, but my understanding is that if the officer acted reasonably and in accordance with his agency policy then they should be safe from any lawsuit.

The Court of Appeals held that "the ramming of Harris’ car could constitute a use of deadly force," slip op. at 13, and relied on Tennessee v. Garner, 471 U.S. 1 (1985), for the proposition that "the use of deadly force may not be used to seize a fleeing felon 'unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.'" Slip op. at 10, quoting Garner, supra, at 3. The panel then declared that "none of the limited circumstances identified in Garner that might render th[e] use of deadly force constitutional [were] present" in this case. Even assuming that Garner was correctly decided, as I suppose the Court of Appeals must assume, this statement seems wrong to me.

Garner stated that "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Garner, supra, at 11. But the 11th Circuit appears to have tranformed what seems to me to be an illustrative example that follows this rule, by way of expresso unius est exclusio alterius, into a far broader rule: deadly force may be used under Garner, says the Court of Appeals, only "(1) where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, or if the suspect threatens the officer with a weapon or there is probable cause to believe that he had committed a crime involving the infliction or threatened infliction of serious physical harm, and (2) if deadly force is necessary to prevent escape, and, (3) if, where feasible, some warning has been given. Without meeting all of these conditions, the use of deadly force is constitutionally unreasonable." Slip op. at 11 (emphasis in original) (internal quote marks and citations omitted).

Having concocted this test, the panel declares it to have been failed: "None of the antecedent conditions for the use of deadly force existed in this case. Harris’ infraction was speeding (73 mph in a 55 mph zone). There were no warrants out for his arrest for anything, much less for the requisite crime involving the infliction or threatened infliction of serious physical harm." Slip op. at 14 (internal quote marks omitted). As a result, the panel concluded that "ramming Harris' vehicle under the facts alleged here, if believed by a jury, would violate Harris' constitutional right to be free from excessive force during a seizure." Slip op. at 18.

In my view, this approach is mistaken at bottom: Garner's exception is clearly found in the rule it announces: "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm ... to others, it is not constitutionally unreasonable to prevent escape by using deadly force." That rule would suffice to decide this case, freestanding: if the cops could reasonably believe that a high speed chase in an urban area, Garner's test is met. Garner may have "made clear that 'it is not better that all suspects die than that they escape,'" slip op at 15, but I would argue that this is a decision that was in the hands of the plaintiff, not the police. The decision that lead to his being crippled was not made by the police, it was made by Harris himself.

I have to wonder -- was Harris wearing a seatbelt? That's not a constitutional question, but if his case goes through I'm sure it will come up.

I've heard the claim made that high-speed chases are almost always unnecessary. By chasing, the police encourage the fleeing driver to drive more dangerously; they do better to get a good ID of the car, license plate if possible, and radio ahead.

Simon's link to the slip opinion shows that the 11th Circuit denied the deputies' Motion for Summary Judgment. The summary judgment motion asserted a qualified immunity based on the assertion that the deputies' acts were reasonable. The applicable review standard is that the evidence must be viewed in the light most favorable to the non-moving party, i.e., the fleeing driver.

All this means is that the driver will have his day in court. He'll still have to convince a jury that the deputies acted unreasonably. That's not too likely, unless they can somehow re-empanel the jurors from the OJ Simpson case.

Thanks for the link Hal. FOUR attempts to spin him? LOL. It works best off the highway - get him off the road. That driver exposed several innocents to risk. I still say Police should be authorized to kill runners. Arm the helo with smart rockets and blow the car away. :)

Fenrisulven said..."I still say Police should be authorized to kill runners."

Well, in a less extreme form, that was the common-law rule done away with in Garner, and I would consider it to be an open question as to whether the court got it right. The Supreme Court said that it would be a mistake to think that "the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant" - which would be the case here in any event - "[b]ecause of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism." Garner, supra, at 12-13. Specifically, because "the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death," and therefore "the killing of a resisting or fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected ... [But] [n]either of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be ... These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life." Id. at 13-14. In other words, says Justice White, Justice Holmes was wrong that the usefulness of a law often outlives the purpose for which it was created.

Prof Althouse: I'm not thinking of a state law matter at all. The question was, absent bringing a tort claim under 42 USC 1983, how does the tort claim even get in Federal court in the first place? Without subject matter jurisdiction conferred by that statute, there is no basis to sue a state actor for tort in Federal court on the facts presented. The 4th amendment by itself doesn't confer subject matter jurisdiction for that type of claim was my point. A finding that the plaintiff's 4th amendment rights or other Consitutional rights had been infringed, however, would be necessary to prove a claim under the statute.

The Federal statute by itself overcomes state soverign immunity.

Everyone else's question is whether the police maneuver was a violation of the plaintiff's 4th amendment rights.

This is a sad world we live in, if you do the research,you will find.A) Most of the high speed chases are over petty bullcrap(misdameanors) and all the police need to do is stop, stop,stop!!!!!!!! You have a discription(in most cases even a video picture) of the suspect or already now who they are.B) Take that information(or actually do the police work needed to get it) and go get the suspect later (its a proven fact it works) or back OFF !!! they probably have them being followed by a helicopterC)The police are so Wrong.DEAD wrong in some cases when chasing these people < use your brain why are they running= because they are being pursued.D) They put everybody at risk doing this, everybody and thats just unacceptable, E)The only reason this happen's is because the police are fu --en ego maniac's who just need to let it go and actually do police work and get the person at another time.F)And finally , I ask you (the Public) , if your like me I see police daily breaking the law, driving off duty ,drunk,etc...

so how are we supposed to have any respect for these people who hav simply donned a unifrom ,gun and badge, its not possible!!!!!!!!!!!!!!! you police need to get a clue and stop killing people!!!!!!!